SpringSource Inc.
Evaluation Agreement
This is a license ("Agreement") between SpringSource, Inc. ("SpringSource") and the entity ("Customer") receiving this software ("Product"). By clicking "Accept" below, you acknowledge that you have read, understood and agree to be bound by the terms of this Agreement and that you have the ability to bind the entity receiving the Product. If you do not agree with the terms and conditions of this Agreement, you may not install or use the Product.
1. GRANT OF LICENSE.
1.1 The License. Subject to the terms of this Agreement, SpringSource grants to Customer a personal, non-exclusive, non-transferable internal license to install on computers owned or leased by Customer and to test the Product at the Project Location listed above and the materials provided to Customer by SpringSource (the "Materials") for not more than 30 days from time of accepting this agreement to evaluate the features, functionality and performance of the Product. At the end of the evaluation period, the Materials may cease to function. The Product may not be used for any other purpose, including but not limited to productive or commercial use.
1.2 License Conditions. SpringSource retains all right, title and interest in and to the Product and Materials, and modifications to the Product and the Materials. Customer may not decompile, disassemble or reverse engineer any Product. Customer may make one copy of each Product for back-up purposes. All copies of Product must contain SpringSource's and its suppliers' proprietary rights notices. The Product may not be modified, altered or enhanced. Customer may not allow any third party to access the Product. In no event may Customer transfer, sublicense or distribute any Product.
The Product and the Materials may not be copied or otherwise reproduced. Customer will obtain and install all prerequisite hardware and software (including any necessary access rights for SpringSource) identified by SpringSource.
1.3 Requirements of Customer. Customer will be responsible for: (i) evaluating the features of the Product, including usability, implementation, performance, scalability, rollout; (ii) providing feedback on any additional features requires, any functionality issues, and errors, flaws, failures, or faults in the Product via an online SpringSource forum; and (iii) participating in press releases and marketing campaigns and acting as a reference account.
1.4 "Confidential Information" means all information furnished by SpringSource in oral, written or machine-readable form, disclosed as a result of this Agreement, and that should reasonably have been understood by Customer, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to SpringSource, an affiliate of it or to a third party. The results of the evaluation will also be treated as SpringSource Confidential Information. Customer will use a reasonable standard of care to prevent unauthorized access to or disclosure of the Confidential Information, but in no event less than a reasonable standard of care. Customer will disclose the Confidential Information only to its employees with a need to know. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that becomes publicly known through no fault of the Customer or its personnel. All confidentiality obligations regarding Confidential Information shall survive with respect to any Confidential Information received prior to the expiration or termination of this Agreement.
2. WARRANTY DISCLAIMER. THE PRODUCT IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY OF DATA, SYSTEM INTEGRATION, COURSE OF PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE. SPRINGSOURCE DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
3. LIMITATION OF LIABILITY. IN NO EVENT WILL SPRINGSOURCE BE LIABLE FOR ANY CLAIM BASED UPON A THIRD PARTY CLAIM, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF SPRINGSOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES SPRINGSOURCE'S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED TEN THOUSAND DOLLARS (US $10,000). THE ALLOCATIONS OF LIABILITY IN THIS SECTION 3 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF SPRINGSOURCE FOR THE SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
4. TERM AND TERMINATION. The term of this Agreement will begin and end on the dates specified in the Evaluation Period above.
4.1 This Agreement may be terminated at any time by either party upon written notice to the other party. Upon termination or expiration of this Agreement, Customer will deinstall and destroy the Product or return the Product and Materials to SpringSource and certify to SpringSource in writing that all copies or partial copies thereof have been deleted from every computer library and storage device under Customer's control, are no longer in use by or on behalf of Customer, and have been either returned to SpringSource. Termination will not affect any claim, liability or right arising prior to termination.
4.2 All rights and obligations granted under Sections 1.2, 1.4, 2, 3, 4 and 5 of this Agreement will survive the expiration or termination of this Agreement.
5. GENERAL.
5.1 Independent Parties. Neither Customer nor SpringSource is a legal representative, partner or agent of the other.
5.2 Entirety. This Agreement represents the entire agreement of the parties with regard to the Product, Materials, and Confidential Information and supersedes all other agreements related to this subject matter, except for nondisclosure agreement entered into by the parties. Delivery of an executed counterpart of this Agreement by facsimile or any other reliable means shall be deemed to be as effective for all purposes as delivery of the manually executed counterpart. This Agreement may not be amended except in writing signed by both parties.
5.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement; provided, however, that if Section 3 cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.
5.4 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts located in New York, New York, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
v 1.1 updated March 3, 2008
